UKPPO Claim Form

pryder

pryder said:

1505grandad said:

Some observations:-

"10.       No provision was made to understand when the car was actually parked by the claimant."

Perhaps amend slightly  to  -  "No provision was made by the claimant to understand when the car was actually parked." 

Para 11  -  ".... but because I parked the car later than the Claimant acknowledges,...."  -  not sure if that makes sense.

Paras 14 & 23  -  "The added £166.67 constitutes more than double recovery...."  does that include Court/sols fees? 

Thanks for the feedback @1505grandad

First point - yes makes sense. I will amend.

Para 11 makes sense to me but as it may not be clear to everyone, I will have a think how to re-word.

Paras 14/23: Yes it does - I have a breakdown somewhere. Will find the bwlegal letters and post their breakdown but I'm pretty sure it was recovery costs, inflation, solicitor fees amongst that figure. Should I not be quoting the full figure? 

The breakdown of the costs as per the claim form:
Original charge - £100
Interest at 8% pa - £22.66
Recovery costs - £60
Court fee - £35
Legal representative's costs - £50

TOTAL - £267.66

Which figure should I use in my WS? 

Coupon-mad

I wouldn't put any of that in a WS.  Not sure which paragraph you put it in?

There is no need to repeat a sum of money or breakdown that's already seen by the Judge in the claim form particulars.

There is need to isolate the false £60 DRA 'recovery' costs as extortion because the parking charge was de facto never 'recovered' and the industry's unregulated DRAs operate on a 'no win no fee basis'.  No £60 was incurred or expended by the Claimant so it is absurd and an abuse of the small claim legal fees cap for them to add an extra £60.

Thus is all covered in the example WS by @aphex007

pryder

Thanks @Coupon-mad

Yes, I have no intention of listing the breakdown in my witness statement. The breakdown here was to answer a question by @1505grandad about the figure I did quote (£167 above the original £100 claimed) which I have mentioned in paras 14/23.

So this was just to ask do I simply quote the figure of £60 which the claimant added on to the original, or do I highlight how its now inflated to a total of £267. Hope that makes sense! 

1505grandad

".....about the figure I did quote (£167 above the original £100 claimed) which I have mentioned in paras 14/23."

The main reason I posted my query (as I do with most of my few - compared with the experts here - posts)  is to draw the OP's attention to a particular statement (in this case "double recovery") in the hope that they will think about and understand their Defence/WS which are signed under a SoT.

Appears it worked:-

"So this was just to ask do I simply quote the figure of £60 which the claimant added on to the original, or do I highlight how its now inflated to a total of £267."

pryder

Just so I'm clear, I understand this means that £60 is the figure I'll be using instead?

And thank you for the help thus far, it is very much appreciated! 

pryder

Hi all,

Thanks for the feedback.

Posting the (hopefully) final WS which has incorporated @aphex007's WS and the latest comments on this thread. Any final comments appreciated, otherwise I will submit this tomorrow.

Background and sequence of events

3.         On xx/xx/xxxx, I took my grandmother to do some shopping at multiple stores in Wembley Stadium Retail Park. My grandmother is a disabled person (see Exhibit XX-01 of proof of her disability, by way of a disabled blue badge permit) and struggles to walk long distances. She also requires additional space around the car to enter and exit the vehicle, hence requiring parking close to shops in a bay large enough for her to manoeuvre around the vehicle.

4.         Upon arrival at the Stadium Retail Park, it was observed that there was a sign whilst arriving in the car park (see Exhibit XX-02) but due to driving in and cars moving constantly, it was not possible to stop on the entrance road and read the sign and this was not legible whilst in a moving vehicle, especially as the sign was on the left-hand side of the kerb.

5.         It was a busy time on a busy day and hence I was unable to find a disabled parking spot immediately. It took me 10 minutes before I was able to find a vacant disabled spot. There were also no signs immediately next to the disabled parking space (see Exhibit XX-03). This meant having to walk to the nearest sign in order to read the terms and conditions for parking. By the time I parked, read the signs and accepted the terms, it was approximately 15 minutes from the time I entered the car park.

6.         Because of the disability that my grandmother has, it takes her extra time to enter and exit the vehicle, as well as procure her walking aids from the boot. No provision was made by the claimant to take this into consideration. This shows blatant disregard and discrimination for disabled persons with protected characteristics. This is contradictory to the IPC code of practice (see Exhibit XX-04) where reasonable adjustments should be made for disabled persons as per the Equality Act 2010.

7.         Given my grandmother’s walking difficulties, she does not go out very often and when she does, she likes to complete her shopping from various shops in one trip as much as possible, and hence anticipated to make full use of the 90 minutes parking that was allowed at the car park.

8.         In addition, due to the busy day in the retail park and the queue to exit the site, it took a few minutes to get out of the car park too.

9.          Taking into account the time taken to actually park the car, read the signs, allowing for the disabled passenger to get in and out of the car, I believe that the time the car actually spent parked in the car park was comfortably within the 90 minute time frame that the car park allows for, not even taking into account a 10 grace period which should have been allowed for by the claimant.

10.       No provision was made by the claimant to understand when the car was actually parked. In the case of 3JD08399 ParkingEye v Ms X (Altrincham 17/03/2014), where the defendant spent 31 minutes waiting to park, the judge ruled against ParkingEye saying the ANPR data recorded time in the car park and not the time parked.

11.       Instead, I received a Parking Charge Notice (PCN) and was asked to pay this penalty charge. This is not because the time that the car was parked exceeded the time allowed, but simply because the Claimant fails to acknowledge the car was parked later than the time the ANPR captures the car entering and leaving the car park.

 

Lack of ADR

12.       After receiving the PCN, I appealed just after 21 days of receiving the letter which I understood to be within relevant time frames. In the Parking Charge Notice sent by the claimant, there are various references to dates (14 days allowed to get a reduced charge of £60 instead of the full £100 charge, 21 days mentioned once under the appeal section, and 28 days mentioned multiple times including twice within the appeals section) which I found very confusing – see Exhibit XX-05. Instead, I received a response from the claimant that it was too late to appeal. Aside from the confusion around the dates, this again does not give defendants a reasonable time frame between receiving a letter (a few days after being issued and sent via second class post) and drafting an appeal for it to be considered appropriately.

13.       I further aver the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that an independent and fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute.

 

Abuse of process - the quantum

14.       The Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. They have added a sum described as 'damages/admin' or 'debt collection costs'. The amount stated as per the sign in the car park was originally £100, however the claimant subsequently claimed for £160 which was then over time inflated further. The added £60 constitutes double recovery and it is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67. Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal', i.e. unrecoverable. The court is invited to find the quantum claimed is false and an abuse of process - see Exhibit XX-06 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

15.       My stance regarding this punitive add-on is now underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice.

16.       Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 15), the Government is pressing ahead and has conceded to undertake a final Public Consultation and Impact Assessment, as the latter was missing from their rationale. Going by the damning words of the Minister, and the fact that two consultations and an industry and consumer represented Steering Group have already informed the DLUHC's decision over the past two years, I believe there is no reason to think the Government's view will significantly change about adding unconscionable costs that were not incurred and which merely exist as a mechanism to enhance already-doubled parking charges, to fuel the roboclaim race to court and to side-step the £50 legal fees cap set in the Small Claims Track.

17. Adding debt recovery/costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

18. This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

19. The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

20. The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether; this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response (also in February 2022), they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, and are effectively Trade Body Board member colleagues passing motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

21.       This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit. The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the pre-Beavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html

''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

22.       This stopped ParkingEye from using that business model again, particularly because HHJ Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

23.       This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (see Exhibit XX-07), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect premise with a complete lack of any legitimate interest.

24.       Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

25.       The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on the signage. It comes too late when purported debt recovery fees are only quantified after the event. These are now banned costs which the Claimant has neither paid nor incurred. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it.

26.       Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.

27.       This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

28.       It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit xx-16) where she went into great detail about this abuse.

29.       The Semark-Jullien case is now unreliable going forward and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much-needed clarity for consumers and Judges across England and Wales.

30.       In case this Claimant tries to rely upon those old cases, significant errors were made. Evidence - including unclear signage and Codes of Practice - was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy). In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms, and were not in possession of the same level of facts and evidence as the DLUHC.

 

CPR 44.11 - further costs

31.       I am appending with this bundle, a fully detailed costs assessment (see Exhibit XX-08) which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I remind the court that I appealed and engaged with the Claimant early on and they were very much aware of the circumstances that led to this claim. Not only could this claim have been avoided but the Claimant has no cause of action but it is also vexatious to pursue an inflated sum that includes more than double recovery.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

32.       As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

33.       The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1)

''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings)... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

 

 

 

Coupon-mad

There is a lot of repetition there about the fake £60 - that part is a bit disjointed too - and you have this sentence in the middle:  "The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case."

But you don't mention the Salisbury case (Semark-Julien, HHJ Parkes) until much later at para 28.

I think you can and should add more about the legal right of a disabled shopper to have more time.

Exhibits and commentary should include:

- This from 2010: 
http://news.bbc.co.uk/1/hi/uk/8488737.stm

- The Services, Public functions and Associations: Statutory Code of Practice, issued by the Equality and Human Rights Commission (EHRC).  The section on INDIRECT discrimination is what you need, to explain why there is no excuse to be heard from a trader bleating "we didn't know about that individual's needs" and a PPC trying to blame the individual for not appealing.  In fact, there is a legal duty on the operator to make sure policies like inflexible 'total stay' times are adjusted in anticipation of the disabled population 'at large' - i.e. in advance.  This Claimant failed to consider how to avoid 'indirect discrimination' of disabled visitors; a detriment which would obviously be likely to arise from a blanket '90 minutes' policy and faceless ANPR that fails to identify disabled motorists, nor offer any method to claim extended parking time, which could easily be set out on the Blue Badge bay signs and possible to claim at Store CS desks, as some retailers do at better sites.

- This from last year:
https://www.equalityhumanrights.com/en/advice-and-guidance/search?text=Retailers
"For most organisations and in most situations:

• The first requirement involves changing the way things are done (equality law talks about where the disabled service user is put at a substantial disadvantage by a provision, criterion or practice of the service provider).  
• An organisation may have rules or ways of doing things, whether written or unwritten, that present barriers to you as a disabled person.

They may stop you using the service altogether, or make it unreasonably difficult for you to use it."

- the currently temporarily stalled DLUHC Code, quoting para 4 about accessibility of car parks:
"Adaptations are not purely physical - people with other disabilities might reasonably need longer consideration period and grace periods, more time to access payment machinery."

Oh yes, and I think you've missed out the paragraph from aphex007's thread that tells the Judge that the new incoming Code is temporarily stalled (due to the greed of Judicial Reviews by PPCs) but why it is still 'persuasive' and courts should pay regard to the new Code anyway, because it is coming.

The part about accessible parking won't change because the JRs didn't attack that section.  Just the money...

1505grandad

Para 9  -  "....not even taking into account a 10 grace period....."  -  "minute" missing

pryder

Cannot thank you enough @Coupon-mad. That was incredibly useful. I had tried to merge aphex007's WS with the previous standard template and it came out messy and disjointed so now I have stuck with aphex007's version more instead.

I have incorporated the feedback and will be submitting this evening. Any final comments welcome.

Background and sequence of events

3.         On xx/xx/xxxx, I took my grandmother to do some shopping at multiple stores in Wembley Stadium Retail Park. My grandmother is a disabled person (see Exhibit xx-01 of proof of her disability, by way of a disabled blue badge permit) and struggles to walk long distances. She also requires additional space around the car to enter and exit the vehicle, hence requiring parking close to shops in a bay large enough for her to manoeuvre around the vehicle.

4.         Upon arrival at the Stadium Retail Park, it was observed that there was a sign whilst arriving in the car park (see Exhibit xx-02) but due to driving in and cars moving constantly, it was not possible to stop on the entrance road and read the sign and this was not legible whilst in a moving vehicle, especially as the sign was on the left-hand side of the kerb.

5.         It was a busy time on a busy day and hence I was unable to find a disabled parking spot immediately. It took me 10 minutes before I was able to find a vacant disabled spot. There were also no signs immediately next to the disabled parking space (see Exhibit xx-03). This meant having to walk to the nearest sign in order to read the terms and conditions for parking. By the time I parked, read the signs and accepted the terms, it was approximately 15 minutes from the time I entered the car park.

6.         Given my grandmother’s walking difficulties, she does not go out very often and when she does, she likes to complete her shopping from various shops in one trip as much as possible, and hence anticipated to make full use of the 90 minutes parking that was allowed at the car park.

7.         In addition, due to the busy day in the retail park and the queue to exit the site, it took a few minutes to get out of the car park too.

8.          Taking into account the time taken to actually park the car, read the signs, allowing for the disabled passenger to get in and out of the car, I believe that the time the car actually spent parked in the car park was comfortably within the 90-minute time-frame that the car park allows for, not even taking into account a 10-minute grace period which should have been allowed for by the claimant.

9.         No provision was made by the claimant to understand when the car was actually parked. In the case of 3JD08399 ParkingEye v Ms X (Altrincham 17/03/2014), where the defendant spent 31 minutes waiting to park, the judge ruled against ParkingEye saying the ANPR data recorded time in the car park and not the time parked.

10.       Instead, I received a Parking Charge Notice (PCN) and was asked to pay this penalty charge. This is not because the time that the car was parked exceeded the time allowed, but simply because the Claimant fails to acknowledge the car was parked later than the time the ANPR captures the car entering and leaving the car park.

 

Breach of Equality Law

11.       Because of the disability that my grandmother has, it takes her extra time to enter and exit the vehicle, as well as procure her walking aids from the boot. No provision was made by the claimant to take this into consideration. This shows blatant disregard and discrimination for disabled persons with protected characteristics. This is contradictory to the IPC code of practice (see Exhibit xx-04) where reasonable adjustments should be made for disabled persons as per the Equality Act 2010.

12.       Under the Disability Discrimination Act, businesses need to make extra allowances for disabled people. The lack of this was acknowledged by most major supermarkets, as highlighted by the BBC in an investigation in 2010 (see Exhibit xx-05), whereby it was stated: “about two-thirds said they did not give disabled people any extra time to shop, which is a breach of the law.”. It is clear that the Claimant has not taken any steps since that time to act in accordance with the Disability Discrimination Act.

13.       The Claimant cannot claim to not knowing about an individual’s needs before imposing terms nor can PPCs try to blame the individual for not appealing. As per the ‘Services, Public functions and Associations: Statutory Code of Practice’, issued by the Equality and Human Rights Commission (EHRC), this is a clear case of indirect discrimination which is defined as ‘when a service provider applies an apparently neutral provision, criterion or practice which puts persons sharing a protected characteristic at a particular disadvantage’.  The code is clear that this is unlawful as per the statement, ‘Indirect discrimination is unlawful, even where the discriminatory effect of the provision, criterion or practice is not intentional, unless it can be objectively justified’.

14.       In fact, there is a legal duty on the operator to make sure policies like inflexible 'total stay' times are adjusted in anticipation of the disabled population 'at large' - i.e. in advance.  This Claimant failed to consider how to avoid 'indirect discrimination' of disabled visitors; a detriment which would obviously be likely to arise from a blanket '90 minutes' policy and faceless ANPR that fails to identify disabled motorists, nor offer any method to claim extended parking time, which could easily be set out on the Blue Badge bay signs and possible to claim at store customer service desks, as some retailers do at other sites. The DLUHC code makes this abundantly clear in its guidance: ‘Adaptations are not purely physical - people with other disabilities might reasonably need longer consideration period and grace periods, more time to access payment machinery.’

15.       The claimant failed to act by the requirements of duty, provided by the Equality and Human Rights Commission (EHRC) which are provided where a disabled person would otherwise be placed at a substantial disadvantage compared with people who are not disabled. This urges organisations to ‘change the way things are done (equality law talks about where the disabled service user is put at a substantial disadvantage by a provision, criterion or practice of the service provider)’. This is to remove the consequence where it may stop the disabled user from using the service altogether, or make it unreasonably difficult for the disabled individual to use it, which can be found here:

https://www.equalityhumanrights.com/en/multipage-guide/three-requirements-duty

 

Lack of ADR

16.       After receiving the PCN, I appealed just after 21 days of receiving the letter which I understood to be within relevant time frames. In the Parking Charge Notice sent by the claimant, there are various references to dates (14 days allowed to get a reduced charge of £60 instead of the full £100 charge, 21 days mentioned once under the appeal section, and 28 days mentioned multiple times including twice within the appeals section) which I found very confusing – see Exhibit xx-06. Instead, I received a response from the claimant that it was too late to appeal (see Exhibit xx-07). Aside from the confusion around the dates, this again does not give defendants a reasonable time frame between receiving a letter (a few days after being issued and sent via second class post) and drafting an appeal for it to be considered appropriately.

17.       I further aver the Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The Appeals Annex in the new Code shows that genuine disputes such as this - even if the facts were narrowed later - would have seen the charge cancelled, had a fair ADR existed. Whether or not a person engaged with it, the Claimant's consumer blame culture and reliance upon the industry's own 'appeals service' should not sway the court into a belief that an independent and fair ADR was ever on offer. The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and would have rejected almost any dispute.

 

POFA and CRA breaches

18.       Pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a firm may have complied with other POFA requirements (adequate signage, Notice to Keeper wording/dates, and a properly communicated 'relevant contract/relevant obligation').

19.       Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3), the Government guidance on the Consumer Rights Act 2015 ('CRA'). The CRA introduced new requirements for 'prominence' of both contract terms and 'consumer notices'. In a parking context, this includes signage and all notices, letters and other communications intended to be read by the consumer.

20.       Not drawing onerous terms to the attention of a consumer breaches Lord Denning's 'red hand rule' and in addition the global sum on the particulars of claim is unfair under the CRA. Consumer notices are never exempt from the test of fairness and the court has a duty under s71 of the CRA to consider the terms and the signs to identify the breaches of the CRA. Not only is the added vague sum not stated on the notices at all but the official CMA guidance to the CRA covers this and makes it clear that words like 'indemnity' are objectionable in themselves and any term trying to allow a trader to recover costs twice would (of course) be void, even if the added sum was on the signs.

 

Abuse of process - the quantum

21.       The Claimant continues to pursue a hugely disproportionate fixed sum (routinely added per PCN) despite knowing that this is now banned. They have added a sum described as 'damages/admin' or 'debt collection costs'. The amount stated as per the sign in the car park was originally £100, however the claimant subsequently claimed for £160 which was then over time inflated further. The added £60 constitutes double recovery and it is denied that the quantum sought is recoverable (authorities: two well-known ParkingEye cases where modern penalty law rationale was applied). Attention is drawn to paras 98, 100, 193, 198 of ParkingEye Ltd v Beavis [2015] UKSC67 (see Exhibit xx-08). Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment. Whilst £75 was reasonable, HHJ Hegarty (sitting at the High Court; later ratified by the CoA) held in paras 419-428 that unspecified 'admin costs' inflating it to £135 'would appear to be penal', i.e. unrecoverable. The court is invited to find the quantum claimed is false and an abuse of process - see Exhibit xx-09 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

22.       My stance regarding this punitive add-on is now underpinned by the Government, who have now stated that attempts to gild the lily by adding 'debt recovery costs' were 'extorting money'. The Department for Levelling Up, Housing and Communities ('DLUHC') published in February 2022, a statutory Code of Practice, found here: https://www.gov.uk/government/publications/private-parking-code-of-practice

23.       Whilst it is known that the rogue parking industry have just filed Judicial Reviews and have delayed the new Code of Practice (as per paragraph 15), the Government is pressing ahead and has conceded to undertake a final Public Consultation and Impact Assessment, as the latter was missing from their rationale. Going by the damning words of the Minister, and the fact that two consultations and an industry and consumer represented Steering Group have already informed the DLUHC's decision over the past two years, I believe there is no reason to think the Government's view will significantly change about adding unconscionable costs that were not incurred and which merely exist as a mechanism to enhance already-doubled parking charges, to fuel the roboclaim race to court and to side-step the £50 legal fees cap set in the Small Claims Track.

24.       Adding debt recovery/costs/damages/fees (however described) onto a parking charge is now banned. In a section called 'Escalation of costs' the incoming statutory Code of Practice says: "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued."

25.       This particular Claimant's legal team routinely continues to pursue a sum on top of each PCN, despite indisputably knowing that these are banned costs. The claim is exaggerated by inclusion of a false, wholly disproportionate and unincurred 'damages' enhancement of £60 upon which the Claimant seems to have also added interest at 8% calculated from the date of parking. Clearly an abuse of the court process.

26.       The Code's Ministerial Foreword is unequivocal about abusive existing cases such as the present claim: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists."

27.       The DLUHC consulted for over two years and considered evidence from a wide range of stakeholders. Almost a fifth of all respondents to the 2021 Technical Consultation called for false fees to be scrapped altogether: this despite the parking industry flooding both public consultations, some even masquerading as consumers. The DLUHC saw through this and in a published Response (also in February 2022), they identified that some respondents were 'parking firms posing as motorists'. Genuine consumer replies pointed out that successful debt recovery does not trigger court proceedings and the debt recovery/robo-claim law firms operate on a 'no win, no fee' basis, and are effectively Trade Body Board member colleagues passing motorists' data around electronically and seeking to inflate the sum of the parking charge, which in itself is already sufficiently enhanced.

28.       This Claimant has not incurred any additional costs (not even for reminder letters) because the full parking charge itself more than covers what the Supreme Court in Beavis called a 'letter chain' business model that generates a healthy profit.

29.       The driver did not agree to pay a parking charge, let alone unknown costs, which were not quantified in prominent text on the signage. It comes too late when purported debt recovery fees are only quantified after the event.

30.       These are now banned costs which the Claimant has neither paid nor incurred. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it.

31.       Whilst the new Code and Act is not retrospective, it was enacted due to the failure of the self-serving BPA & IPC Codes of Practice. The Minister is indisputably talking about existing (not future) cases when declaring that 'recovery' fees were 'designed to extort money'. A clear steer for the Courts.

32.       This overrides mistakes made in the appeal cases that the parking industry try to rely upon (Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy). Far from being persuasive, regrettably these one-sided appeals were findings by Circuit Judges who appeared to be inexperienced in the nuances of private parking law and were led in one direction by Counsel for parking firms, and the litigant-in-person consumers lacked the wherewithal to appeal further.

33.       It is pertinent to note that the Britannia v Semark-Jullien appeal judgment by HHJ Parkes criticised the District Judges at Southampton, for apparently not having enough evidence to conclude that Britannia 'knew' that their added costs were abusive (unincurred, unpaid and unjustified). Unbeknown to HHJ Parkes, of course all District Judges deal with template, generic evidence and arguments from parking operators every week, and BPA member firms including Britannia, certainly had been told this by Judges up and down the Country for many years. And the decision and words used by the DLUHC show that DJ Grand and DJ Taylor were right all along. As was HHJ Jackson in Excel v Wilkinson (not appealed - see Exhibit xx-10) where she went into great detail about this abuse.

34.       The Semark-Jullien case is now unreliable going forward and is fully distinguished now that the Government has at last stepped in and exposed and published the truth. This Claimant indisputably has knowledge (and always had knowledge) that they have not paid a penny in debt recovery costs, nor incurred any additional costs that the £100 parking charge is not designed to more than cover. The abuse is now clearly established and a new judgment re-stating this position, in the light of the damning words in the Foreword and the Explanatory Document published alongside the Code of Practice and stating (for the avoidance of doubt) the knowledge that District Judges have from years of experience of seeing these template enhanced claims and telling this Claimant to stop bringing exaggerated parking claims to court, would be welcomed to bring much-needed clarity for consumers and Judges across England and Wales.

35.       In case this Claimant tries to rely upon those old cases, significant errors were made. Evidence - including unclear signage and Codes of Practice - was either ignored, even when in evidence at both hearings (Wilshaw, where the Judge was also oblivious to regulatory DVLA KADOE rules requiring landowner authority) or the judgment referred to the wrong rules, with one Judge seeking out the inapplicable BPA Code after the hearing and using it erroneously (Percy). In Ward, a few seconds' emergency stop out of the control of the driver, was inexplicably aligned with Beavis. The learned Judges were led in one direction by Counsel for parking firms and were not in possession of the same level of facts and evidence as the DLUHC.

 

CPR 44.11 - further costs

36.       I am appending with this bundle, a fully detailed costs assessment (see Exhibit xx-08) which also covers my proportionate but unavoidable further costs and I invite the court to consider making an award to include these, pursuant to the court's powers in relation to misconduct (CPR 44.11). In support of that argument, I remind the court that I appealed and engaged with the Claimant early on and they were very much aware of the circumstances that led to this claim. Not only could this claim have been avoided but the Claimant has no cause of action, but it is also vexatious to pursue an inflated sum that includes more than double recovery.

 

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

37.       As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement. I ask for my fixed witness costs. I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

38.       The fixed sum for loss of earnings/loss of leave apply to any hearing format and are fixed costs at PD 27, 7.3(1)

''The amounts which a party may be ordered to pay under rule 27.14(3)(c) (loss of earnings) ... are: (1) for the loss of earnings or loss of leave of each party or witness due to attending a hearing ... a sum not exceeding £95 per day for each person.''

Coupon-mad

Under the Disability Discrimination Act,

No such Act. Revoked, replaced and improved by the Equality Act 2010!  The BBC article was from 2010 just before the change but you can't say "under the Disability Discrimination Act" nowadays.

I meant the EHRC statutory code must be linked as well.  Not just quoted but not provided - the Judge wants to see the law you are taking him/her to!

And the 'Indirect Discrimination' section of the EA itself. Read thoroughly, quoted and linked.